Often our clients come to us with doubts and questions about contracts for the provision of online services, for example: if I contract online with the telephone company and they do not provide the service, where do I sue them?
The law protects the borrower in these cases whether he is a consumer or not.
Although the general place of jurisdiction is the defendant’s domicile, in the case of service contracts where the conclusion of the contract has been preceded by a public offer, the court of the borrower’s domicile or the lender’s domicile, at the plaintiff’s choice, will have jurisdiction.
If he is also a consumer, in any type of contract, the court of his domicile or the court corresponding to the domicile of the defendant shall have jurisdiction, at the choice of the consumer or user.
But what happens if the contract for the provision of services is with a foreign company within the EU?
Art. 22.5 LOPJ
Likewise, in the absence of express or tacit submission and even if the defendant is not domiciled in Spain, the Spanish courts will have jurisdiction:
- a) In matters of contractual obligations, when the obligation which is the subject matter of the claim has been performed or is to be performed in Spain.
- d) In matters of consumer contracts, consumers may litigate in Spain if they have their habitual residence in Spanish territory or if the other contracting party has his habitual residence in Spain; the latter may only litigate in Spain if the consumer has his habitual residence in Spanish territory.
In the Brussels Regulation 1215/2021 I bis, the rule is that the courts of the defendant’s country of residence in the European Union must hear the case. However, Article 7 provides that:
A person domiciled in one Member State may be sued in another Member State:
1) a) in matters relating to a contract, in the courts for the place where the obligation which forms the basis of the claim has been or is to be performed;
- b) a for the purposes of this provision, and unless otherwise agreed, that place shall be:
— in the case of the sale of goods, the place in the Member State where, under the contract, the goods have been or are to be delivered,
— in the case of the supply of services, the place in the Member State where, under the contract, the services have been or are to be provided;
- c) where point b) does not apply, point a) applies;
Finally, and in order to determine which specific judicial district within Spain should hear the dispute, Article 52 of the Code of Civil Procedure provides that, where the conclusion of the contract was preceded by a public offer, the plaintiff may choose between the domicile of the borrower or the defendant.
In disputes arising from the exercise of individual consumer or user actions, the court of the consumer’s or user’s domicile or the corresponding court in accordance with Articles 50 and 51 shall have jurisdiction, at the choice of the consumer or user.
In conclusion, a person who contracts for the provision of a service via the internet, in the event of non-performance of the service, can always sue in the competent court of his or her domicile.